Justice Collins Says That Under the Facts Pled, Governmental
Immunity Would Fall, Citing Mandatory Duty to Impound Dogs Who Are Stray,
Unlicensed or Running at Large

By a MetNews
Staff Writer

The County of
Los Angeles faces possible liability, under a Court of Appeal decision
yesterday, for the wrongful death of a woman who was attacked, while taking a
morning stroll, by four pit bulls who had jumped over a fence.

Alex
Jackson, owner of the dogs—who were guarding his marijuana operation—was
sentenced in 2014 to five years to life in prison for second degree murder.

Yesterday’s
decision reverses a judgment of dismissal that was entered after Los Angeles
Superior Court Judge Mel Red Recana sustained demurrers without leave to amend
based on governmental immunity. It also affirms the judgment to the extent
Recana barred two causes of action which the plaintiffs—the husband and
daughter of the deceased—indicated on appeal they did not wish to pursue.

The
unpublished opinion instructs that the trial court overrule the demurrers to
causes of action for causes of action for negligence, public nuisance, and
wrongful death, and allow the plaintiffs to amend the complaint to allege
compliance with the government claims statute or set forth why noncompliance
should be excused.

Exception to
Immunity

Writing
for Div. Four of this district’s Court of Appeal, Justice Audrey Collins said
that Government Code §815.6 sets forth an exception to government immunity
“[w]here a public entity is under a mandatory duty imposed by an enactment that
is designed to protect against the risk of a particular kind of injury.” It
imposes liability “for an injury of that kind proximately caused by its failure
to discharge the duty unless the public entity establishes that it exercised
reasonable diligence to discharge the duty.”

The
jurist noted that the County Code §10.12.090 says the director of the
Department of Animal Care and Control “shall capture and take into custody”
unlicensed or stray dogs or dogs “running at large.” The word “shall,” she
noted, rendered the duty “mandatory.”

Taking
as true the allegations of the complaint, demurrers should not have been
sustained, she said, because it was averred that the department failed to carry
out its mandatory duty.

The
department had cited Jackson for having dogs that were unlicensed, and he
admitted that they were strays.

“The
dogs therefore fell within at least one of several categories of dogs that
‘shall’ be impounded,” Collins wrote, “and there was no discretionary action
necessary.”

Allegations of
Complaint

The
complaint alleged that the county had actual knowledge that packs of pits bulls
had in the past escaped from Jackson’s property and attacked people, as well as
their pets and livestock. At Jackson’s trial, evidence was adduced that seven
altercations involving his dogs were reported to department in the 18 months
preceding the May 9, 2013 attack on Pamela Devitt, 63.

She
died on the way to the hospital from loss of blood. There were 150 to 200
puncture marks and one of her arms was severed.

The
attack took place in Littlerock, an unincorporated area north of the San
Gabriel Mountains.

A
letter from “Concerned employees” who worked in the department’s animal shelter
in Lancaster had written to higher-ups in the department management and to the
Board of Supervisors, prior to the attack on Devitt, telling of the situation
in Littlerock. They alleged that the department was failing to “enforce proper
processes and procedures that would have resulted in the dogs being impounded,
and to properly respond to complaints from the public over several months
seeking protection from dogs running at large from the Jackson property and
attacking people and livestock in the…area.”

Notwithstanding
that letter, the county did not act to impound the dogs.

(Marcia
Mayeda, director of the department at that time, has retained her position.)

County’s
Contention

The
county argued on appeal that the ordinance is “not designed to protect against
the risk of mauling death.” Rather, it insisted, it was in the nature of a
licensing law, as evidenced by the “de minimis monetary penalty for maintaining
unlicensed dogs” and because the ordinance “does not otherwise evidence an
intent to prevent the public from physical harm.”

Collins
responded:

“The
apparent object to be achieved by LACC section 10.12.090 is to ensure the
capture of dogs that do not meet certain criteria, and have those dogs
sequestered. The requirement that stray dogs, unlicensed dogs, and dogs running
at large be captured and taken into custody suggests that the purpose of the
ordinance was to capture dogs that lacked responsible ownership, and contain
them in a space away from the public. The removal of certain dogs from public
areas was not an “incidental benefit resulting from a procedural licensure
provision,” as defendants argue. If that were the case, licensed dogs running at
large, licensed sick dogs, or licensed injured dogs—all of which are subject to
capture under LACC section 10.12.090—would not be included in the statute.
Rather, the main thrust of LACC section 10.12.090 makes clear that dogs not
meeting certain criteria are to be separated from the public and contained
within a shelter.”

“The
director shall place animals taken into custody in the county animal shelters
or appropriate facilities.”].)

The
case is Devitt
v. Los Angeles County Department of Animal Care and Control, B270577.

The
Devitts were represented by William E. Wegner of Davies Wegner Law Corp.,
Olesia Levine and Eric Levine of The Levine Firm, and Jeffrey I. Ehrlich.
Deputy County Counsel Diane C. Reagan was joined by Justin Reade Sarno and Jill
Williams Carpenter of Rothans & Dumont in presenting arguments for the
county.